High court expands police power to search

BOSTON
— Which of the following violates the Constitution's protection against unreasonable searches and seizures? (Hint: All three cases were decided this term by the US Supreme Court; only one was deemed a violation.)

*A Minnesota police officer peeks between the blinds of an apartment window and sees three people placing cocaine in baggies. All three are arrested.

*A motorist pulled over for a routine traffic violation in Iowa is placed under arrest after the police officer finds drugs under the driver's seat.

*A Wyoming trooper searching a car for drugs used by the driver finds drugs inside a passenger's purse. He has no reason to suspect the passenger when he starts the search, but arrests her after the discovery.

Of the three cases, the only one found to be unconstitutional was the drug arrest after the routine traffic stop. In the other two incidents, the court found that police had acted properly.

This term, the Supreme Court is considering a relatively large number of cases involving Fourth Amendment protections against unreasonable searches and seizures. In addition to the three cited above, the court is also examining whether police violate the privacy of a home when they allow the media to follow them as they execute warrants, and whether police need a warrant prior to forfeiting a car suspected of being used to deal drugs.

Analysts say it is difficult to generalize about why the court accepts certain kinds of cases, but the rulings in this area are consistent with a 20- to 30-year trend of siding with law enforcement in cases that pit police against individual rights.

"We've seen an erosion in individual liberties and an increase in government power in relation to searches and seizures," says Alan Rafael, a law professor at Loyola University in Chicago. "This court almost always finds the balance weighing in favor of the government."

The conservative wing of the court, led by Chief Justice William Rehnquist, has been increasingly willing to avoid imposition of the exclusionary rule - the legal imperative that if police use improper methods to obtain evidence, it can't be used against a defendant.

At the same time, the conservatives on the court have sought to streamline law-enforcement operations by simplifying as much as possible the often complicated area of search-and-seizure law.

"The Fourth Amendment is complex and you have police officers who aren't attorneys but who have to make determinations on the spot," says Charles Hobson of the Criminal Justice Legal Foundation in Sacramento, Calif. "You can't expect police officers to cope with something that complex unless you have a few simple, defined rules."

As written, the Fourth Amendment sounds simple. It guarantees "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." It requires that before any search or seizure, the government must obtain a court-authorized warrant by demonstrating there is probable cause to believe a crime has been or is about to be committed.

SOUNDS pretty clear cut. But in the 200 years since the adoption of the Bill of Rights, court interpretations have created a patchwork quilt of gray areas. For example, police don't always need a warrant to search a car when the police have reason to believe the car contains contraband or evidence of a crime.

All three of the cases above are examples of gray areas of the law. Legal analysts say the court appears to be accepting such cases to eliminate as much ambiguity as possible, and free up police to concentrate on crime fighting. One way to do that, they say, is to simplify search-and-seizure law.

"The court really does like bright-line rules for police," says Ronald Bretz, a law professor at the Thomas M. Cooley Law School in Lansing, Mich. "The court has said we don't want the police to resort to law books. They don't want to leave cops ... to guess, 'What can we do and what can't we do.' "

Following the April 5 decision in the Wyoming trooper case, the new rule says that when police have probable cause to search a car because of suspected criminal activity of the driver, they do not need additional probable cause to search packages belonging to passengers in the car.

The bright line established in the Minnesota cocaine case is that overnight visitors to a private home have an expectation of privacy, while temporary guests (like the drug dealers) do not.

"What we've seen is the gray areas, with regard to search and seizure, being defined more carefully with an eye toward giving police clear rules," says Michael Rushford, president of the Criminal Justice Legal Foundation. "The times you get abuse of the police authority are times when the rules aren't clear."

But the court has also been willing to rein in police powers when it felt they exceeded their authority. In the Iowa case, a unanimous court struck down a state law that empowered police to conduct a full-blown search of a driver and car after even the most routine traffic violations.

Police are entitled to conduct such searches only when the suspect is in the process of being taken into custody.

"There is a solid majority of justices who favor the police in search cases," says Paul Mogin, who filed a friend-of-the-court brief in the Wyoming case. But, he adds, "that doesn't mean they are prepared to validate anything the police are willing to do."